SWEDEN Law and Practice Contributed by: Albert Wållgren, Henrik Ossborn and Lionardo Ojeda, Advokatfirman Vinge KB
controlled by the originator. Its business opera - tions will be limited by its by-laws, which will typically contain restrictive language about the SPE’s business object. Although a typical Swedish securitisation structure (as further outlined in 1.2 Structures Relating to Financial Assets and 1.4 Special- Purpose Entity (SPE) Jurisdiction ) involves the establishment of a Swedish limited liability com - pany directly owned by the Swedish originator, it is not uncommon for Swedish securitisations to involve an orphan SPE set up in Luxembourg or Ireland, for example, for tax and/or regulatory reasons and purposes. Consolidation in Bankruptcy Under Swedish law, bankruptcy proceedings are conducted on a “company-by-company” level – ie, a subsidiary will not be declared bankrupt solely by reason of its parent company’s bank - ruptcy, and the creditors of one company being declared bankrupt would not individually lead to there being recourse against any other company in the same group. Under normal circumstances, the concept of “substantive consolidation” does not exist under Swedish law. Consequently, in a typical securiti - sation structure – if done correctly – the bank - ruptcy of the originator would not have a direct legal impact on the SPE’s financial situation or However, it should be noted that there are cer - tain exceptions to the above general principle. For example, if the SPE and the originator are organised as a group for VAT purposes ( moms - grupp ), each member of the group for VAT pur - poses is jointly and severally liable for the princi - pal group entity’s ( huvudmannens ) VAT liabilities. operations. Exceptions
Consequently, any claim for taxes directed towards the principal group entity (eg, the origi - nator), in or outside bankruptcy, could also be directed towards any other entity within the group for VAT purposes. Although this is not a bankruptcy issue per se, the implication could be viewed as an exception to the principle that each company is independently liable for its own debt. Furthermore, it is a well-established principle under Swedish law that a Swedish limited liabil - ity company is a separate legal entity from its owners. Thus, as a main rule, the shareholders of a limited liability company cannot be held responsible for actions carried out by a subsidi - ary, nor can they become liable for a subsidi - ary’s obligations and liabilities. However, general principles of piercing the corporate veil ( ans - varsgenombrott ) have been developed in case law from the Swedish Supreme Court, where shareholders have, under exceptional circum - stances (disloyal purpose, under-capitalisation of the company and lack of independence), become liable for the obligations of a subsidiary. 6.3 Transfer of Financial Assets Perfection of Transfer Swedish law distinguishes between non-nego - tiable promissory notes ( enkla skuldebrev ) and negotiable promissory notes ( löpande skulde - brev ). As a general principle, both non-negotia - ble promissory and negotiable promissory notes (and receivables thereunder) are freely transfer - able by the creditor without the prior consent of the debtor, and a transfer is effective between the transferor and the transferee upon the exe - cution of the transfer agreement. However, while the new creditor who has acquired a negotiable promissory note will be protected against third-party claims by being
407 CHAMBERS.COM
Powered by FlippingBook